Gould v. Gould, 82-950

• Decision Date: 01 March 1984
• Docket Number: No. 82-950,82-950
• Citation: 116 Wis.2d 493,342 N.W.2d 426
• Parties: In re the Marriage of Steven G. GOULD, Plaintiff-Respondent, v. Linda A. GOULD, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 426

342 N.W.2d 426

116 Wis.2d 493

In re the Marriage of Steven G. GOULD, Plaintiff-Respondent, v. Linda A. GOULD, Defendant-Appellant-Petitioner.

No. 82-950.

Supreme Court of Wisconsin.

Argued Jan. 3, 1984.

Decided Jan. 31, 1984.

Motion for Reconsideration Dismissed March 1, 1984.

Donald J. Wall, Legal Services of Northeastern Wisconsin, Inc., Green Bay, for defendant-appellant-petitioner.

Owen F. Monfils, Green Bay, for plaintiff-respondent.

Lucy Cooper, Sandra Edhlund, Family Law Center and Edhlund, Rachofsky & Cooper, S.C., Milwaukee, and Judy Avner, Marsha Levick and NOW Legal Defense and Education Fund, New York City, for the Wisconsin National Organization for Women, NOW Legal Defense and Education Fund and Women's Legal Defense Fund, amicus curiae.

ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals filed March 22, 1983, 112 Wis.2d 674, 333 N.W.2d 733, affirming a judgment of the circuit court for Brown county, John C. Jaekels, Circuit Judge, transferring custody of the child Kimberly Gould from Linda Gould to Steven Gould. Because we conclude that the circuit court abused its discretion in ordering custody transferred, we reverse the decision of the court of appeals and the judgment of the circuit court transferring custody.

This review stems from the divorce of Linda Gould and Steven Gould. The divorce judgment dated March 28, 1977, incorporated a stipulation that Linda Gould have custody of the parties' only child, Kimberly Ruth Gould, born March 4, 1974.

On May 15, 1981, Steven Gould petitioned the circuit court to transfer custody of Kimberly to him. The circuit court ordered a psychiatric evaluation of the child and of each parent's fitness as a custodian and a "moral-social" study of each of the home environments to be conducted by a social worker from the Brown County Family Services Association. The circuit court appointed a guardian ad litem for Kimberly.

The psychiatrist recommended that Kimberly be allowed to remain with her mother. The social worker did not make a recommendation as to which parent should have custody, but she did state her opinions about the relative merits of the two home environments. Kimberly expressed a strong preference to remain with her mother. Kimberly's guardian ad litem recommended that custody be transferred to Steven Gould on the basis of the concern expressed by the social worker that Kimberly, then seven years old, would be adversely affected in adolescence by her mother's lifestyle. However, the guardian ad litem conceded that his opinion was based on speculation.

The circuit court found that both parents were loving, concerned, and fit custodians and that Kimberly loved them both. It concluded that Kimberly was happy and well adjusted in her home and her school environments.

The circuit court also found that Steven Gould's lifestyle was "traditional" and Linda Gould's was "nontraditional."

Steven Gould had remarried and was helping to raise his two stepchildren. The circuit court recognized that there may be some "sibling type friction" between Kimberly and the two stepchildren but it did not view the friction as unusual or very significant.

Linda Gould was a fulltime homemaker and was not married to the man with whom she had been living for several years.

Steven Gould was college-educated and earned $29,000 a year. In the circuit court's words, he was an "achiever" who provided a "more affluent and socially stimulating" environment than did Linda Gould, an unemployed high school graduate and a "nonachiever" (according to the circuit court) receiving AFDC after her maintenance payments ceased.

Steven Gould and his second wife took their children to church regularly. Linda Gould did not provide a formal religious environment for Kimberly. The circuit court stated that "religion and its discipline [are] important, particularly for a child."

The circuit court found that although Kimberly related well to her mother and her mother's living companion and that there was no demonstrable evidence that the extramarital relationship "had any ill effect" on Kimberly at that time, her mother's living situation would "most likely be harmful" when Kimberly reached preadolescence. This conclusion appears to have been based on the opinion of the social worker that Kimberly would be subjected to a double message at adolescence: Linda Gould would presumably be trying to teach Kimberly society's moral values while living with a man outside of marriage.

Allowing that "this is a difficult case to decide," the circuit court transferred custody of Kimberly to her father. It compared the mother's and father's lifestyles as follows:

"On one side there is no substantial evidence that there is any present harm to the child as a result of the current custody order. The child is happy and doing well at school. The mother's living arrangement ... has not caused any harm to the child to date. On the other side, the physical, moral, spiritual, social, and educational environment and opportunities with the father would be far better in the long run, and the child would certainly benefit. The problem with transferring custody always involves the chance of a separation trauma. There is no evidence that Linda [Gould]'s values will change. The question posed is whether the chance of a separation trauma is worth the gamble of transferring custody so that the long range interest of the child would be better served. I believe it is.... The Court is of the opinion that custody with the father will enhance the child's well-being."

An appellate court must give great weight to the circuit court's determination as to custody. A custody determination depends on first-hand observation and experience with the persons involved and is therefore committed to the sound discretion of the circuit court. The circuit court's determination merits a high degree of insulation from appellate interference. Discretionary determinations, however, do not lie beyond meaningful appellate scrutiny. Friendly, Indiscretion About Discretion, 31 Emory L.J. 74 (1982). The custody determination will be reversed if the appellate court is convinced that the findings of fact upon which the custody determination is based are clearly erroneous, sec. 805.17(2), Stats.1981-82, or that the custody determination represents a clear abuse of discretion. To find an abuse of discretion the appellate court must find that the circuit court either has not exercised discretion or has exercised its discretion on the basis of an error of law or irrelevant or impermissible factors. Groh v. Groh, 110 Wis.2d 117, 128, 327 N.W.2d 655 (1983); Millikin v. Millikin, 115 Wis.2d 16, 25, 339 N.W.2d 573 (1983).

We asked the parties to address in their briefs and arguments the following issue: "In addition to the alleged use of wealth-based criteria, was the circuit court's decision against the great weight and clear preponderance of the evidence or an abuse of discretion in any other respect?" We conclude that the circuit court based the exercise of its discretion in this case on an error of law and considered a factor that is impermissible in a determination of custody. Accordingly we hold there was an abuse of discretion and reverse the judgment transferring custody.

The circuit court erred in making its decision to transfer custody by failing to apply the test embodied in sec. 767.32(2). The circuit court failed to recognize that in proceedings to transfer custody, sec. 767.32(2) puts the burden on the moving party to bring forth substantial evidence showing that removal of the child is necessary to the child's best interest. Sec. 767.32(2), Stats. 1981-82, which governs change of custody proceedings, provides:

"Any modification of a custody order which removes a child from the care of a parent having custody of the child shall be based on a finding that such removal is necessary to the child's best interest as shown by substantial evidence supporting a change in custody under s. 767.24(2)." (Emphasis added.) ¹

This statute makes clear that the standard for a modification of a custody order is not the same as that for an initial award of custody. While certain evidence might be sufficient to support an initial award of custody to one party on a best interest of the child analysis, it may not be sufficient to support a modification of a custody order where a showing of necessity must be made under sec. 767.32(2).

This court recently interpreted the language of sec. 767.32(2) requiring that a change of custody be "necessary." Millikin v. Millikin, 115 Wis.2d 16, 23-24, 339 N.W.2d 573 (1983). We said that the legislative history indicated that by requiring a showing that change of custody be "necessary" the legislature meant to impose more than a simple showing that the change be in the best interest but less than a showing that the change be "essential." Millikin, supra, 115 Wis.2d at 23, 339 N.W.2d 573; Corcoran v. Corcoran, 109 Wis.2d 36, 40-41, 324 N.W.2d 901 (Ct.App.1982). Although we recognized in Millikin that the word "necessary" could not be defined with precision for purposes of determining a change in custody, we did attempt to set forth guidelines. We said:

" 'necessary' does not mean that the child need be in impending or immediate danger of life, health, or safety. Rather, we view 'necessary' as implying that the change of custody itself is needed because the current custodial conditions are harmful in some way to the best interest of the child. Such harm should not be found, however, simply because the custodial parent cannot match the better general living conditions offered by the parent seeking change of custody. In order for better living conditions to become significant, they must rectify a condition in the current custodial arrangement that is harmful to the child's best interest." Millikin, supra, 115 Wis.2d at 23-24, 339 N.W.2d 573.

The circuit court erred in...